EXHIBIT 10.2
PARENT GUARANTEE AGREEMENT
PARENT GUARANTEE AGREEMENT, dated as of October 19, 1995, as
amended and restated as of November 10, 1998 (the "PARENT GUARANTEE
AGREEMENT"), made by UCAR INTERNATIONAL INC., a Delaware corporation
("UCAR"), and UCAR GLOBAL ENTERPRISES INC., a Delaware corporation
(the "BORROWER" and, together with UCAR, the "GUARANTORS"), in favor
of THE CHASE MANHATTAN BANK, a New York banking corporation, as
collateral agent for the Secured Parties. Reference is made to (i)
the Credit Agreement dated as of October 19, 1995, as amended and
restated as of March 19, 1997 and November 10, 1998 (as the same may
be amended, supplemented or otherwise modified from time to time,
the "EXISTING CREDIT AGREEMENT"), among UCAR, the Borrower, the
Subsidiary Borrowers party thereto, the Lenders party thereto, the
Fronting Banks party thereto and The Chase Manhattan Bank, as
administrative agent and collateral agent and (ii) the Credit
Agreement dated as of November 10, 1998, among UCAR, the Borrower,
UCAR S.A., the Lenders party thereto, The Chase Manhattan Bank, as
administrative agent and collateral agent, Credit Suisse First
Boston, as syndication agent, and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as syndication agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "TRANCHE C
FACILITY CREDIT AGREEMENT", and together with the Existing Credit
Agreement, the "CREDIT AGREEMENTS").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreements, the Lenders have severally
agreed to make Loans and the Fronting Banks have agreed to issue Letters of
Credit, upon the terms and subject to the conditions set forth therein;
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make the Loans and the obligation of the Fronting Banks to issue the Letters
of Credit that the Guarantors shall have executed and delivered this Guarantee
to the Collateral Agent for the ratable benefit of the Secured Parties; and
WHEREAS, UCAR is the direct holder of all of the issued and
outstanding capital stock of the Borrower, and it is to the advantage of UCAR
and the Borrower that the Lenders make the Loans and the Fronting Banks issue
the Letters of Credit.
NOW, THEREFORE, in consideration of the premises and to induce the
Secured Parties to enter into the Credit Agreements and
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to induce the Lenders to make their respective Loans and the Fronting Banks to
issue their respective Letters of Credit, each of the Guarantors hereby agrees
with the Collateral Agent, for the ratable benefit of the Secured Parties, as
follows:
1. DEFINED TERMS. (a) Unless otherwise defined herein, terms defined
in the Credit Agreements and used herein shall have the meanings given in the
Credit Agreements.
(b) "GUARANTEE": this Parent Guarantee Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
(c) "OBLIGATIONS": (i) the unpaid principal of and premium, if any,
and interest (including interest accruing at the then applicable rate provided
in the Existing Credit Agreement after the maturity of the Loans thereunder and
interest accruing at the then applicable rate provided in the Existing Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any Credit Party
thereunder whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) on the Loans made under the Existing Credit
Agreement, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) the unpaid principal of and
premium, if any, and interest (including interest accruing at the then
applicable rate provided in the Tranche C Facility Credit Agreement after the
maturity of the Loans thereunder and interest accruing at the applicable rate
provided in the Tranche C Facility Credit Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any Credit Party thereunder whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding) on the
Loans made under the Tranche C Facility Credit Agreement, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (iii) each payment required to be made by any Credit Party under
the Existing Credit Agreement, when and as due, including payments in respect of
reimbursements of L/C Disbursements, interest thereon and obligations to provide
cash collateral, (iv) each payment required to be made by any Credit Party under
the Tranche C Facility Credit Agreement, when and as due, and (v) all other
obligations and liabilities of every nature of the Credit Parties under the
Credit Agreements from time to time owed to the Secured Parties or any of them,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
which may arise under, out of, or in connection with, the Existing Credit
Agreement, the Tranche C Facility Credit Agreement, any Guarantee Agreement, any
Security Document or any other Loan Document and any obligation of the Borrower
or any Credit Party under either of the Credit Agreements to a Lender under
either of the Credit Agreements pursuant to an Interest/Exchange Rate Protection
Agreement or under any other document made, delivered or given in connection
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with any of the foregoing, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including all fees and disbursements of counsel to the Collateral
Agent or to the Secured Parties that are required to be paid by the Borrower or
any Credit Party pursuant to the terms of the Existing Credit Agreement, the
Tranche C Facility Credit Agreement, any Guarantee Agreement, any Security
Document, any other Loan Document or any Interest/Exchange Rate Protection
Agreement with a Lender (all of the foregoing obligations collectively, the
"OBLIGATIONS").
(d) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase, "without limitation".
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. GUARANTEE. (a) The Borrower hereby unconditionally and irrevocably
guarantees, as a primary obligor and not merely as surety, to the Collateral
Agent, for the ratable benefit of the Secured Parties and their respective
successors, indorsees, transferees and assigns, the due, punctual and complete
payment and performance by the Credit Parties when and as due, whether at the
stated maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, of the Obligations. UCAR hereby unconditionally and irrevocably
guarantees, as a primary obligor and not merely as surety, to the Collateral
Agent, for the ratable benefit of the Secured Parties and their respective
successors, indorsees, transferees and assigns, the due, punctual and complete
payment and performance by the Borrower when and as due, whether at the stated
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, of the Obligations of the Borrower (including the obligations of the
Borrower as Guarantor under the immediately preceding sentence).
(b) Each Guarantor further agrees to pay any and all reasonable
expenses (including all reasonable fees and disbursements of counsel) which may
be paid or incurred by any Secured Party in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations guaranteed by such Guarantor and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full, no Letters of Credit are outstanding and the Commitments are
terminated, notwithstanding that from time to time prior thereto while the
Commitments are in effect any Credit Party may be free from any Obligations.
(c) Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Collateral
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Agent for the benefit of any Secured Party on account of its liability
hereunder, it will notify the Collateral Agent in writing that such payment is
made under this Guarantee for such purpose, provided that the failure of such
Guarantor to provide such notice shall not preclude the application of such
payment to the complete or partial satisfaction of such Guarantor's obligations
hereunder following such Guarantor's notice to the Collateral Agent of such
payment.
3. NO SUBROGATION. Notwithstanding any payment or payments made by a
Guarantor hereunder or any setoff or application of funds of a Guarantor by any
Secured Party, no Guarantor shall be entitled to be subrogated to any of the
rights of any Secured Party against any Credit Party or any collateral security
or guarantee or right of offset held by any Secured Party for the payment of the
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Credit Party in respect of payments made
by such Guarantor hereunder, until all amounts owing to the Secured Parties by
any Credit Party on account of the Obligations are paid in full, no Letters of
Credit are outstanding and the Commitments are terminated. If any amount shall
be paid to any Guarantor on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full, Letters of Credit are
outstanding and the Commitments shall not have been terminated, such amount
shall be held by such Guarantor in trust for the Secured Parties, segregated
from other funds of such Guarantor, and shall forthwith upon receipt by such
Guarantor be turned over to the Collateral Agent in the exact form received by
such Guarantor (duly endorsed by such Guarantor to the Collateral Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
at such time and in such order as the Collateral Agent may determine.
4. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against such Guarantor, and without notice to or
further assent by such Guarantor, any demand for payment of any of the
Obligations made by any Secured Party may be rescinded by such Secured Party,
and any of the Obligations continued, and the Obligations, or the liability of
any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Secured Party, and the
Credit Agreements, any other Loan Document, any Interest/Exchange Rate
Protection Agreement and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Collateral Agent (or the Required Secured Parties, as
the case may be) or the relevant Secured Party (in the case of any such
Interest/Exchange Rate Protection Agreement) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by any Secured Party for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. No Secured Party shall have any obligation to
protect, secure,
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perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against a Guarantor, any Secured Party may, but shall be
under no obligation to, make a similar demand on any Credit Party or any other
guarantor, and any failure by any Secured Party to make any such demand or to
collect any payments from any Credit Party or any such other guarantor or any
release of any Credit Party or such other guarantor shall not relieve any
Guarantor of its obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
any Secured Party against any Guarantor.
5. GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by any Secured Party upon this
Guarantee or acceptance of this Guarantee; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between any Credit Party or any Guarantor, on the one hand, and any of
the Secured Parties, on the other, shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Guarantee. Each Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon any Credit Party or any Guarantor with respect to the
Obligations. This Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment, and not of collection, and without regard to
(a) the validity, regularity or enforceability of the Credit Agreements, any
other Loan Document, any Interest/Exchange Rate Protection Agreement, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any Secured
Party, (b) any defense, set-off or counterclaim (other than a defense of payment
or performance) which may at any time be available to or be asserted by any
Credit Party against any Secured Party, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of any Secured Party, any Credit Party
or any Guarantor) which may or might in any manner or to any extent vary the
risk of any Guarantor or otherwise constitutes, or might be construed to
constitute, an equitable or legal discharge of any Credit Party for the
Obligations, or of any Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against any
Guarantor, any Secured Party may, but shall be under no obligation to, pursue
such rights and remedies as it may have against any Credit Party or any other
person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any failure by any Secured Party
to pursue such other rights or remedies or to collect any payments from any
Credit Party or any such other person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
any Credit Party or any such other person or of any such collateral security,
guarantee or right of offset, shall not relieve any Guarantor of any liability
hereunder, and shall not
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impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of any Secured Party against any Guarantor. This Guarantee
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon each Guarantor and its successors and assigns, and
shall inure to the benefit of the Secured Parties, and their respective
permitted successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full, no Letters of Credit shall be
outstanding and the Commitments shall have been terminated, notwithstanding that
from time to time while the Commitments are in effect during the term of the
Credit Agreements any Credit Party may be free from any Obligations.
6. REINSTATEMENT. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
any Secured Party for any reason whatsoever, including, without limitation, upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Credit Party or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, any Credit Party or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
7. PAYMENTS. The Guarantors hereby agree that the Obligations will be
paid to the Collateral Agent without setoff or counterclaim in Dollars at the
office of the Collateral Agent located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
8. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants to and with the Secured Parties that all representations and warranties
in the Loan Documents that relate to the Guarantors are true and correct in all
material respects.
9. COVENANTS. Each Guarantor hereby covenants and agrees with the
Secured Parties that, from and after the date of this Guarantee until the
Obligations are paid in full, no Letters of Credit are outstanding and the
Commitments are terminated, unless the Required Secured Parties shall otherwise
consent in writing, it will, and will cause each of the Subsidiaries to, comply
with each covenant set forth in Articles V and VI of the Credit Agreements to
the extent that it relates to such Guarantor.
10. AUTHORITY OF COLLATERAL AGENT. Each Guarantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Guarantee
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Collateral Agent and the other Secured Parties,
be governed by the Credit Agreements and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Collateral Agent and the Guarantors, the Collateral Agent shall be conclusively
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presumed to be acting as agent for the other Secured Parties with full and valid
authority so to act or refrain from acting.
11. NOTICES. All notices, requests and demands to or upon any Secured
Party or Guarantor under this Guarantee shall be given in accordance with
Section 9.01 of the Credit Agreements.
12. SEVERABILITY. Any provision of this Guarantee or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties shall
endeavor in good-faith negotiations to replace the prohibited or unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the prohibited or unenforceable provisions.
13. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing under the Credit Agreements, each Secured Party is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Secured Party to or for the credit or the account of a Guarantor against
any of and all the obligations of such Guarantor now or hereafter existing under
this Guarantee irrespective of whether or not such Secured Party shall have made
any demand under this Guarantee and although such obligations may be unmatured.
The rights of each Secured Party under this Section 13 are in addition to other
rights and remedies (including other rights of setoff) that such Secured Party
may have.
14. INTEGRATION. This Guarantee represents the agreement of the
Guarantors with respect to the subject matter hereof and there are no promises
or representations by any Guarantor or any Secured Party relative to the subject
matter hereof not reflected herein.
15. AMENDMENTS IN WRITING; NO WAIVER; CUMULATIVE REMEDIES. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each Guarantor
and the Collateral Agent, PROVIDED that any provision of this Guarantee may be
waived by the Required Secured Parties pursuant to a letter or agreement
executed by the Collateral Agent or by facsimile transmission from the
Collateral Agent.
(b) No Secured Party shall by any act (except by a written instrument
pursuant to Section 15(a) hereof) or delay be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of any Secured Party, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or
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privilege hereunder or any course of dealing between the Collateral Agent and
any Guarantor shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by any Secured Party
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which such Secured Party would otherwise have on any
future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
16. SECTION HEADINGS. The section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
17. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of each
Guarantor and each Secured Party and their permitted successors and assigns
except that no Guarantor shall have the right to assign its rights hereunder or
any interest herein (and any such attempted assignment shall be void) except as
expressly contemplated by this Guarantee or by the other Loan Documents.
18. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
19. COUNTERPARTS. This Guarantee may be executed in counterparts, each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one instrument.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
UCAR INTERNATIONAL INC.
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
UCAR GLOBAL ENTERPRISES INC.
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
